Cases and authorities

PRACTICE - APPEAL - COSTS - Offer of compromise by plaintiff respondent - Greater than amount of substituted verdict, but less than verdict plus interest at time of offer - Costs awarded to respondent.

Contract for road construction - concurernt arbitration and reference - issue of time of practical completion - obscure contract - whether manifest error of law in arbitrator's construction of contract - no manifest error of law - no leave to appeal - whether leave to appeal on same issue in reference - on discretionary grounds, no leave to appeal - issue of reasonableness for proprietor to have non-conforming works rectified - whether referee applied correct test of reasonableness - no error in judge holding that he did - in any event on discretionary grounds no leave to appeal.

Sentencing - manslaughter - late plea of guilty to manslaughter on indictment for murder - baby beaten to death by partner of mother - principles - whether worst category - whether maximum sentence appropriate - effect of plea - remorse - utilitarian value - deterrence - denunciation

CORPORATIONS - winding up - public examination of officers - application for direction precluding publication of certain questions and answers - whether grounds exist - whether direction may be made before questions asked and answered

CONTRACTS - illegal contracts - covenant in restraint of trade - whether enforceable

Appeal decision of Local Court assessor - denial of natural justice

CONVEYANCING [24]- Defect in title- Mining lease affecting land- Defect in title or a mere defect in quality- Held defect in quality- Vendor did not have to disclose the defect in quality- Effect of prohibition on making certain requisitions- Whether prevents rescission for defect covered by prohibition. CONTRACT [135][137]- Election- Right to rescind in purchaser dehors contract- Whether purchaser must know both of defect and of right to rescind for defect- Authorities discussed.

MENTAL HEALTH - Guardians and financial managers - appointment of Public Guardian by Guardianship Tribunal because conflicting views on accommodation - family member available - whether appointment appropriate having regard to s4, s14 and s15(3) of the Guardianship Act 1987 - STATUTES - Interpretation - Guardianship Act 1987 - s15(3) - proper interpretation

CORPORATIONS - winding up - statutory demand - application for leave to defend on grounds of genuine dispute and offsetting claim - circumstances giving rise to dispute and offsetting claim arose after deadline for application to set aside demand - whether leave to defend required

CONTRACT - employment - repudiation by reduction of salary - Tanaka (Plaintiff) sold majority shares in Tokyo Net (1D), an ISP, to KDDI (2D) and was employed for 3 years as CEO. Tokyo Net depended on loan from KDDI for working capital - KDDI refused to renew the loan, directors considered preparation of a proposal to KDDI to renew loan with reduction in costs, and by majority resolved to reduce Mr Tanaka's salary - Tanaka treated this as anticipatory breach and repudiation, accepted repudiation and sued for damages: issues of fact about whether resolution was conditional on submission and approval of loan renewal proposal: on the facts, it was not conditional, reduction in salary was repudiatory, damages awarded. - VENDOR and PURCHASER - shares in private company - option - in the Sale Agreement Tanaka had Put Option to sell his remaining shares if his employment was terminated within 3 years - after accepting repudiation he exercised Put Option - option not available if he resigned: on the meaning of the Sale Agreement, he did not resign by accepting repudiation: Sale on exercise of option enforced by Specific Performance.

Real Property - Caveats - Section 74O Real Property Act - Application for leave for lodgment of further caveat - Costs - Proceedings commenced without authority

CORPORATIONS - winding up - liquidator seeking to intervene in Family Court dispute - no proper purpose of advancing liquidation achieved by such intervention

CRIMINAL LAW AND PRACTICE - BREAKING ENTERING AND STEALING - JOINT CRIMINAL ENTERPRISE - SUFFICIENCY OF EVIDENCE OF BREAKING - DIRECTIONS TO JURY ON LIES TOLD BY OFFENDER - REQUEST FOR FURTHER DIRECTION - ONE REFERENCE TO STEALING AS DISTINCT FROM BREAKING ENTERING AND STEALING - NO MISCARRIAGE AND PROVISO APPLIED - SENTENCE - NOT EXCESSIVE

CRIMINAL LAW - Court of Criminal Appeal - amendment of error in recitation of charge in original judgment by application of slip rule

CRIMINAL LAW: Crown appeal against sentence - murder (3) - victims applicant's wife and two children - overall sentence of twenty six years, non parole period nineteen and a half years - challenges to judge's findings of fact, structure of sentences - whether sentences manifestly inadequate.

LIMITATION - extension of limitation period - appeal - re-exercise of discretion - extension granted - no question of principle - ND

Review of Administrative Decision - Exercise of Discretion by Corrective Services Commissoner - Quashing of Determination

CONTRACT - purchase price in Australian dollars to be paid by letter of credit in Great British pounds - effect of fluctuation in exchange rates - whether parties agreed to vary contract by buyer undertaking to procure forward exchange cover for seller - whether, under contract, work done on delivery of goods was installation work - TRADE AND COMMERCE - misleading and deceptive conduct - whether costs of receivership caused by misrepresentations as to plaintiff's claim

Vexatious Litigation - Discretion

Criminal law - sentencing - carnal knowledge - sexual intercourse without consent

Criminal law - sentencing - ongoing supply of a prohibited drug for reward

Criminal law - accused's right to silence - whether breached by Crown Prosecutor's closing address - whether consequent direction appropriate.

Criminal law - appeal - conviction and sentence - whether failure to withdraw a direction might have affected the jury deliberations - whether an alternative count should have been left to the jury - whether a basis for sentence to be reduced as having to be served in onerous circumstances.

Appeal - tort - negligence - duty of care - existence and scope of duty - whether Council breached duty of care owed to appellant - whether appellant when intoxicated exercised reasonable care for own safety - when appellant fell from broken footpath at night.

PRACTICE AND PROCEDURE - Alteration of reasons for judgment - APPREHENDED BIAS - Apprehended bias by reason of pre-judgment - Johnson v Johnson (2000) 201 CLR 488 test - Findings at an interlocutory stage expressed in terms of finality - Undesirability of judges supporting interlocutory evidentiary rulings by commenting on evidence. D

INSURANCE - construction - whether liability excluded under true construction of insurance policy - whether liability excluded by implied term - DUTY OF DISCLOSURE - Insurance Contracts Act 1984, s21 - knowledge of matter relevant to risk - alteration of risk

NEGLIGENCE - duty of care - defendants/lessor's obligation to inform plaintiff/lessee of maintenance and/or upgrade works in progress to the leased property - defendants/lessor knew of plaintiff's regular use of the leased 52 acre property for motorbike riding - - DAMAGES - Civil Liability Act 2002 (NSW) ss 13, 15, regarding damages for non-economic loss and gratuitous services

CORPORATIONS - reinstatement to register - company deregistered for failure to lodge returns - unsatisfied costs order outstanding against company - company insolvent before deregistration

Tort - personal injury - injury sustained in course of employment - claim in negligence against operator of Sydney Markets - alleged failure to maintain road surfaces or maintain adequate cleaning system - determination of liability

TRUSTS AND TRUSTEES - land held on trust for charitable purposes of hospital - proposal to turn to account and lease for term greater than allowed by applicable statute - clear benefits to medical research and charitable purpose - value of participation exceeds value foregone by sterilising ability to put land to alternative use during lease term

PROBATE - executors - commission - percentage rate as opposed to lump sum - Wills Probate and Administration Act 1898

CRIMINAL LAW: Application for leave to appeal against sentence - serious offences, but valuable assistance to authorities - applicant in danger - reduction of non-parole period.

CORPORATIONS - Statutory demand - Reference to repealed statute - Whether a valid demand - PRACTICE - APPEALS - Appeal from appeal to single judge - Whether as of right.

Industrial accident - actions against employer and entity to whom plaintiff's services made available - apportionment of fault. Damages - assessments under Workers' Compensation Act and Civil Liability Act.

Work injury - foreseeability - preventability - total incapacity

EQUITY - resulting trusts - evidence of actual intention - oral contract for disposition of equitable interest - whether minute of meeting a note or memorandum for purposes of Statute of Frauds - whether minute accurate in view of other evidence of indebtedness

Criminal law - manslaughter - sentence - basis of plea - provocation - excessive self-defence - intoxication - inability to find intent to seriously injure - unlawful and dangerous act - alien on whom sentence more onerous - prospect of reprisals on deportation - recommendation against deportation.

EQUITY [317]- Injunction- Application for mandatory injunction to compel plaintiff to gain information from Commonwealth authority- Relevance of fact that Commonwealth legislation seeks to protect authority from all subpoenas- Obligation of plaintiff not to impede court in deciding issues- Social Security (Administration) Act 1999, s 207.

Industrial accident - liability admitted - for assessment of damages only.

Whether conduct of counsel resulted in unfair trial or miscarriage of justice - Failure of appellant to appear - power of Court to dismiss appeal.

Criminal Law - Sentencing - dangerous driving causing death x2 - driver over tired - erratic driving over 50kms prior to fatal accident - warning to driver of fatigue - number of persons put at risk - Criminal Law - Sentencing - pleas of guilty - discount for "early pleas" - meaning of "early" - pleas after some days of voir dire hearing not "early"

Case stated - statutory construction - questions of law or fact -

Personal Injury - leave to appeal required - opponent injured on footpath - whether trial judge erred in finding negligence of Council - whether trial judge failed to find cause of injury - whether failure to find contributory negligence.

Appeal against liability - Respondent injured in motorcycle accident - trial Judge's evaluation of the evidence - whether evidence sufficient to establish breach of duty of care owed by first appellant.

Company articles - offer to other shareholders at "fair value" - fair value determined "by reference to the value of the Company's net tangible assets" - whether solely by reference to value of net tangible assets - question of construction.

Application for leave and, if granted, appeal against the refusal of a development application.

Family Law. Applicaion under Property Relationships Act for adjustment of property interests. Consideration of how losses should be taken into account. Sharing of obligations one partner has undertaken to make provision by his will to redress losses incurred during the relationship.